Delhi High Court
Bhanu Shaha vs The State (Nct Of Delhi) [Along With ... on 13 March, 2007
Equivalent citations: 140(2007)DLT495
Author: P.K. Bhasin
Bench: R.S. Sodhi, P.K. Bhasin
JUDGMENT P.K. Bhasin, J.
Page 1023
1. This judgment shall dispose of Criminal Appeal Nos. 474 of 2003 and 187 of 2004 filed by two appellants, Bhanu Shaha and Karan Bahadur Shaha, Page 1024 against the judgment dated 09.04.2003 passed by learned Additional Sessions Judge, Delhi in Sessions Case No. 47/2001 in respect of F.I.R. No. 99/99 registered at Police Station Welcome whereby both of them have been convicted under Sections 392/397/34 IPC and also under Section 302/34 IPC. They have also challenged the order dated 10.04.2003 whereby both of them have been awarded life imprisonment for the offence of murder with a fine of Rs. 1,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of six months each under Section 302 IPC. The appellants were further sentenced to undergo Rigorous Imprisonment for seven years and also to pay a fine of Rs. 1,000/- in respect of their conviction under Sections 392/397/34 IPC. The substantive sentences were directed to run concurrently.
2. The prosecution case is that in the early morning of 30.05.1999, the two appellants were going in a three wheeler scooter No. DBR-7631 and when they reached near Dwarka Mandir at G.T. Road, which was within the jurisdiction of Police Station Welcome, PW-4 HC Mulakh Raj who was on vehicle checking duty from 4 a.m. to 7 a.m., stopped that three wheeler scooter, which was being driven by PW-19 Rambir, and Head Constable Mulakh Raj, PW-4, noticed that the two appellants were sitting in that scooter as passengers and were having a bag each in their hands. When they were asked about the contents of the bags they became perplexed. In the meantime two other policemen came there who told HC Mulakh Raj that they had signalled the TSR driver to stop at Kanti Nagar but it was not stopped. Then the two bags being held by the appellants were opened. The bag in the hand of appellant Karan Bahadur was found to contain Rs. 3 lacs in cash while the bag which appellant Bhanu Shaha was holding was found to contain cash amount of Rs. 1,93,083/-. In the meantime the SHO of that area (PW-16) who was on patrolling duty at that time also reached there along with the other policemen. HC Mulakh Raj informed the SHO about the huge amount of cash in the two bags of the appellants and their failure to give any satisfactory explanation about that much of cash with them. The two appellants and the TSR driver were handed over to the SHO. The currency notes were seized. Both the appellants during their interrogation by the SHO at that time disclosed that the amount recovered from them had been robbed by them from a factory in West Gorakhpur after killing the Supervisor of that factory and they could point out that factory and get recovered the iron rods with which they had broken the locks of the table drawer. Both the appellants were then arrested and from the personal search of appellant Karan Thapa one visiting card (Ex.PW-25) of Ashok Kumar on which address of 10043, Gali No. 3, West Gorakhpur was printed was recovered. The personal search memo showing that recovery of the visiting card is Ex. PW-4/F. Pursuant to that information, the appellants took the police men to a factory at property bearing No. 10043, Gali No. 3, West Gorakhpur, Delhi, which was the address printed on the visiting card recovered from the bag of appellant Bhanu Shaha. Inside that factory, dead body of one Mahavir Prasad was lying on a folding bed. The appellants allegedly also pointed out the drawers of a table from where they had looted the cash amount. SHO then recorded the statement of HC Mulakh Raj and sent a ruqqa to the police station for registration of an Page 1025 FIR under Sections 392/394/302/412/34 IPC and on that basis FIR No. 99/99 was recorded. From that place two steel glasses which were lying near the dead body of the deceased were seized and as per the prosecution case finger prints of the appellants were found on the same. Information about the recovery of the dead body of Mahavir Prasad reached PW-3 Vikas Gupta, an employee in that factory of PW-2 Ashok Kumar Gupta who was not in town that day, and PW-1 Anil Adnani, a friend of the deceased. They came to the factory and identified the dead body to be that of Mahavir Prasad who was employed in that factory as a Supervisor. The owner of the factory, who at that time was not in Delhi on reaching Delhi on the next day claimed that Rs. 10 lacs had been stolen from his factory. He also claimed that appellant Karan Bahadur was employed by him as a chowkidar in his factory.
3. On completion of the usual investigation, both the appellants were charge-sheeted. Learned Additional Sessions Judge framed charges against both the appellants under Sections 392 read with Section 34 IPC, Section 302 IPC read with Section 34 IPC, Section 397 read with Section 34 IPC and also under Section 120B IPC.
4. The prosecution in order to establish its case, examined nineteen witnesses. The two appellants when examined under Section 313 Cr.P.C. denied the prosecution allegations and pleaded false implication.
5. Learned trial court after considering the circumstantial evidence adduced by the prosecution in the form of recovery of cash from the two appellants, find of their finger prints on the two steel tumblers recovered from the place where dead body of deceased Mahavir Prasad was found, held both the appellants guilty of the offences as already noticed. Feeling aggrieved by their conviction, the appellants have preferred these appeals and since both the appeals arise out of the same judgment and have been heard together the same are being disposed of by this common judgment.
6. We have been taken through the evidence of the material prosecution witnesses who are PW-4 Head Constable Mulakh Raj, PW-16 Inspector Run Singh Dogra, PW-8 HC Aquil Ahmed, PW-12 SI Avdesh Kumar(Finger Print Expert), PW-2 Ashok Kumar Gupta and PW-3 Vikas Gupta.
7. Learned Counsel for the appellants have stated at the outset that they were not disputing that the deceased Mahavir Prasad had died a homicidal death. That fact is even otherwise established from the testimony of the autopsy surgeon PW-13 Dr. S.K. Verma according to whom the cause of death was asphyxia due to ligature strangulation. His report is Ex. PW-13/A. He was not cross-examined on behalf of the accused persons. The contention of the learned Counsel for the appellants, however, was that actually the police officials had committed the crime and falsely implicated the appellants. In support of this submission our attention was drawn to a suggestion put to the Investigating Officer, PW-16 Inspector Run Singh Dogra that he was suspended on the allegation that he had recovered much more cash than it was actually shown to have been recovered from the two appellants and rest of the amount was misappropriated by him along with his other subordinates. Learned Counsel contended that if the investigating officer was dishonest Page 1026 there can be no guarantee about the truthfulness of the prosecution case put up by him in the Court against the appellants. There is no doubt that PW-16 has admitted in his cross-examination that he was suspended on these allegations but he has also clarified that in the vigilance inquiry he was exonerated and was found innocent. So nothing turns around this fact and the appellants cannot derive any benefit from the suspension of the SHO.
8. We will now examine the circumstantial evidence relied upon by the prosecution to establish the guilt of the two appellants. The first circumstance relied upon by the prosecution is that the appellant Karan Bahadur was employed in the factory of PW-2 Ashok Kumar Gupta, from where the dead body of deceased Mahavir Prasad was recovered, as a chowkidar. Learned Counsel for the appellant Karan Bahadur contended that the prosecution has not placed on record any documentary proof regarding the employment of Karan Bahadur in the factory of PW-2 Ashok Kumar Gupta. There is no doubt that the prosecution has not produced any documentary evidence in this regard but even in the absence of the same we find that the prosecution has been able to establish this fact. PW-2 Ashok Kumar Gupta has deposed that he was running a factory at 10043, gali No. 3, West Gorakh Park since 1981 and the deceased Mahavir Prasad was working there as a Supervisor. He also deposed that his nephew Vikas Gupta(PW-3) was also working in his factory and accused Karan Bahadur was working as a chowkidar in his factory. He had engaged Karan Bahadur as chowkidar about 15/20 days before this incident. He further deposed that on 29-05-99 he had received payment of about ten lacs which he had kept in the drawer of the table and at about 8.30 p.m. he had gone to Balaji with his family members leaving the afore-said money in the drawer of the table. He further deposed that one of his customers had issued a cheque for Rs. 6,70,000/- on 29-05-99 which he had encashed from the bank and about rupees three lacs were kept with him by his driver Raj Kumar who had sold his land on the same day. PW-3 Vikas Gupta has also deposed that he was working in the factory of his uncle Ashok Kumar Gupta which was in the name of Jenus Traders and further that accused Karan Bahadur was a chowkidar in that factory and the deceased Mahavir Prasad was the Supervisor. Although in the cross-examination of these two prosecution witnesses it was put to them that Karan Bahadur was not the employee of Ashok Kumar Gupta but in our view merely on the basis of that suggestion the reliable evidence of these two witnesses cannot be doubted despite the fact that there is no documentary evidence brought on record to show that, in fact, Karan Bahadur was an employee of PW-2 Ashok Kumar Gupta. We find from the cross-examination of PWs 2 and 3 that it was asked from them on behalf of the accused as to since when the deceased Mahavir Prasad had been employed in their factory to which PWs 2 and 3 answered that he had been employed many years prior to the incident. Then another suggestion was put to them that they were deposing falsely that Mahavir Prasad had been working in the factory for many years and actually he was employed only since 01-04-99. This suggestion, which was denied by both the witnesses, in fact, shows that Karan Bahadur had something to do with Ashok Gupta and Vikas Gupta and their factory as otherwise he could not have suggested to these witnesses Page 1027 that the deceased Mahavir Prasad was employed in their factory only since 01-04-99. The fact that Karan Bahadur was employed in the factory of PW-2 Ashok Kumar Gupta is also established from the recovery of the visiting card Ex. P-25 from his possession at the time of his arrest. As noticed already, the said visiting card was of the firm of PW-2 Ashok Kumar Gupta on which the address of the premises from where the dead body of the deceased was recovered was printed. The recovery of that visiting card was not disputed by Karan Bahadur in the cross-examination of recovery witnesses PW-4 Mulakh Raj and PW-16 Inspector Ran Singh. It is, thus, clear that Karan Bahadur has taken a false stand that he was not employed in the factory of PW-2 Ashok Kumar Gupta from where the dead body of Mahavir Prasad was recovered and we are satisfied from the afore-said evidence that Karan Bahadur was, in fact, employed in that factory and we conclude so despite the fact that PW-2 Ashok Kumar Gupta has not produced any formal appointment letter of Karan Bahadur. In our view, the first circumstance relied upon by the prosecution stood established without any doubt.
9. The second circumstance relied upon by the prosecution is that the deceased Mahavir Prasad used to sleep in the factory premises of PW-2 Ashok Kumar Gupta. In this regard also the prosecution is relying upon the evidence of PW-2 Ashok Kumar Gupta from whom it was elicited in his cross-examination by the accused themselves that Mahavir Prasad used to sleep in his office during the night and then it was not challenged on behalf of the accused that Mahavir Prasad never used to sleep during the night in the office of the factory. Therefore, it also stands established that the deceased Mahavir Prasad used to sleep in the factory itself during the night.
10. The third circumstance relied upon by the prosecution is that on the night of 29/30-05-99 both the appellants were present at the place of occurrence. On this aspect of the matter the prosecution has relied upon the circumstance of find of finger prints of both the appellants on two steel glasses which were lying near the dead body of the deceased. Recovery of the two glasses Ex. P-3 and P-4 has been deposed to by PW-4 HC Mulakh Raj, PW-5 ASI Babu Ram, PW-16 Inspector Ran Singh Dogra and PW-3 Vikas Gupta. Their statements regarding seizure of the two glasses from the place of occurrence has also remained unchallenged since to none of them it was even suggested that glasses were not recovered from the place of incident. As far as the find of finger prints on those two glasses is concerned the prosecution has examined PW-8 HC Aquil Ahmed who has deposed that on 30-05-99 he was posted in the finger print branch of the police and that day he had inspected the place of occurrence for the purpose of lifting of chance finger prints. He had lifted four chance prints, two each from two steel glasses and the form filled up by him regarding the find of chance prints on the two glasses was Ex. PW-8/A. That form was filled up to be forwarded to the finger print bureau of the Delhi Police. It was suggested to this witness in cross-examination that no chance prints were lifted by him but he denied that suggestion. We have, however, no reason to disbelieve the evidence of this witness. PW-15 Inspector Kishan Lal has deposed that the chance prints lifted by the crime branch official were sent to finger print bureau on 08-07-99 and specimen finger prints of the two accused persons were also sent there Page 1028 for comparison. PW-15 was not cross-examined at all on behalf of the accused persons and, therefore, it stood admitted by the accused that specimen of finger prints of the appellant were taken during the investigation and the same were forwarded to the finger print bureau for comparison with the chance prints lifted from the two glasses recovered from the spot. PW-12 SI Avdesh Kumar is the finger print expert who has deposed that he had compared the chance prints with the specimen finger prints of the two accused Bhanu Shaha and Karan Bahadur and then he gave his report Ex. PW-12/A. According to PW-12 and his report specimen finger prints of accused Karan Bahadur tallied with the chance prints lifted from one glass and the specimen finger prints of accused Bhanu Shaha had tallied with the chance prints lifted from the other steel glass. It was suggested to this witness in cross-examination that he did not have any qualification of a finger print expert and that he had not prepared the report Ex. PW-12/A. He denied those suggestions and he had claimed that he had done three years training in finger prints science and had also cleared All India Board of Finger Print Examination conducted by the NCRV, Ministry of Home Affairs. It was also suggested to him that chance prints and specimen finger prints were received in his office on 08-07-99. This suggestion also implies an admission of the accused that the investigating agency had forwarded to the Finger Print Bureau their specimen finger prints as also the chance prints in question. It, thus, stands established that both the appellants were in the factory premises, from where the dead body of the deceased was recovered, sometime during the night of 29/30-05-99.
11. The next circumstance relied upon by the prosecution is that on 29-05-99 PW-2 Ashok Kumar Gupta, the owner of the factory where the deceased Mahavir Prasad was found dead, had kept about ten lacs of rupees in cash in the drawer of a table in his factory and on 30th May, 1999 in the morning the drawers of the table were found empty and broken. For establishing this circumstance the prosecution is relying upon the testimony of PW-2 Ashok Kumar Gupta as well as that of PW-3 Vikas Gupta. In this regard what PW-2 deposed has already been noticed. In his cross-examination this part of his statement about his having kept the cash in the drawer of a table in his factory has not been challenged on behalf of the appellants in cross-examination. PW-3 Vikas Gupta has also deposed and, in fact, it was elicited from him on behalf of the accused in cross-examination that on the night of 29/30-05-99 when they had left the factory they had left behind rupees ten to eleven lacs in cash in the factory. Earlier in his examination-in-chief he had deposed that when in the morning of 30-05-99 he had reached the factory on getting the information about the murder of Mahavir Prasad he had found all the drawers of the table empty and in broken condition. In the cross-examination of this witness also it was not disputed that that much cash amount was not lying in the factory. In fact, we find from the cross-examination of PW-4 HC Mulakh Raj, who had apprehended the two appellants in the morning of 30-05-99 when they were traveling in a three wheeler scooter with about five lacs of rupees, that it was suggested to him on behalf of the accused that in this case the total amount involved was rupees ten lacs. This suggestion implies an admission Page 1029 on the part of the accused that on the night of 29/30-05-99 that much amount in cash was, in fact, lying in the factory premises of PW-2 Ashok Kumar Gupta.
12. The fifth circumstance relied upon by the prosecution is that in the morning of 30-05-99 the table drawers in the office of PW-2 Ashok Kumar Gupta were found broken and empty and the cash amount kept there by PW-2 Ashok Kumar Gupta during the previous night was found stolen. In this regard the prosecution is relying upon the evidence of PW-3 Vikas Gupta who has deposed that when he reached the factory of his uncle Ashok Kumar Gupta where he himself was also working, in the morning of 30-05-99 on getting the information about the murder of Mahavir Prasad he had seen that all the drawers of the table were broken and empty. He had also claimed that during the night rupees ten to eleven lacs in cash had been left in the factory. PW-2 Ashok Kumar Gupta has also deposed that when he came back to Delhi from Balaji on 30-05-99 he had been told that Karan Bahadur and his associates had committed robbery in his factory where he had left about rupees ten lacs on 29-05-99 at about 8.30 p.m. These statements of PWs 2 and 3 have also remained unchallenged in cross-examination on behalf of the accused. It has not been disputed and, in fact, as noticed already, the accused persons admit that there was an incident of robbery involving ten lacs of rupees. This circumstance is also clearly established.
13. The sixth circumstance which the prosecution is relying upon is the recovery of about rupees five lacs from the possession of the two appellants in the wee hours of 30-05-99 when they were apprehended by the police near Dwarka Mandir at G.T.Road. To establish this circumstance the prosecution has examined PW-4 HC Mulakh Raj. This witness has deposed that on 30-05-99 he was posted at Welcome police station as a Head Constable and on that day he was on vehicle checking duty at G.T.Road near Dwarka Mandir, Welcome between 4 a.m. to 7 a.m. At about 5.25 a.m. one three wheeler No. DBR 7631 was seen coming from the side of Shahdara which was being driven by one Rambir(PW-19). That scooter was detained for checking. In that scooter the two appellants were sitting and they were having bags in their hands and when they were asked about those bags they became perplexed. He further deposed that when the bags of the appellants were searched cash amount of rupees three lacs was found in the bag of appellant Karan Bahadur and in the bag of Bhanu Saha Rs. 1,93,083/- were found. The evidence of this police official, in our view, establishes the recovery of about rupees five lacs from the possession of the two appellants. In fact, we find from his cross-examination that it was suggested to him that the amount of rupees five lacs was planted upon the accused. This suggestion, which, of course was refuted by PW-4, implies an admission of the fact that, in fact, that much cash amount was recovered from the accused persons. The accused persons have also not challenged in cross-examination of PW-4 his statement to the effect that the two accused persons were traveling in a three wheeler scooter at about 5.25 a.m. on G.T. Road. Even in their statements under Section 313 Cr.P.C. they did not claim that they were not arrested from G.T.Road as claimed by PW-4 or that they were arrested from some other Page 1030 place. The prosecution has also examined the driver of the three wheeler scooter in which they were traveling in the morning on 30-05-99. He is PW-19 Rambir Singh. He has also claimed that on 30-05-99 in the morning at about 4-4.30 a.m. two passengers were traveling in his scooter were searched by the police and some money had been recovered from them kept in two bags and those two male passengers were apprehended by the police. He also deposed that those two passengers looked like the two accused persons present in the Court but he was not sure that the accused persons were those two passengers. Since this witness had not categorically identified the two appellants to be the passengers of his scooter from whom money was recovered by the police he was cross-examined by the public prosecutor. In that cross-examination he admitted that his scooter was stopped by the police at G.T.Road, Welcome and further that on interrogation by the police regarding their bags those two passengers had become nervous. He, however, still did not claim with certainty that those two passengers were the two accused persons who were present in the Court. He also admitted that when the bags of those two passengers were checked lot of money was found in those bags. He also admitted that the police had seized his scooter No. 7631 also. Learned Counsel for the appellants have submitted that from the evidence of this witness the identity of the appellants did not stand established beyond doubt since he has not claimed with certainty that the passengers apprehended by the police with money were the two appellants. In our view, even though this witness has simply claimed that the two passengers were looked like the two accused persons but since the appellants themselves, as noticed already, have not disputed that they were apprehended at G.T.Road when they were found traveling in a three wheeler scooter their identity cannot be said to be doubtful at all. The appellants have not offered any explanation about the recovery of about five lacs of rupees from them at the time of their apprehension by the police. In these circumstances it can be safely said that that money which they were carrying with them at the time of their apprehension by the police was stolen by them from the factory of PW-2 Ashok Kumar Gupta.
14. The next circumstance is the conduct of the two appellants in taking the police officials from the place of their apprehension at G.T.Road to the factory of PW-2 Ashok Kumar Gupta at premises No. 10043, gali No. 3, West Gorakh Park, Shahdara where the dead body of deceased Mahavir Prasad was found lying. In this regard also the prosecution is relying upon the statements of PW-4 HC Mulakh Raj, PW-5 ASI Babu Ram and PW-16 Inspector Ran Singh all of whom have deposed that the two appellants had taken them to the afore-said factory premises where the dead body of the deceased was found lying in the morning of 30-05-99 after they had been apprehended at G.T.Road. Statements of these witnesses on this aspect of the prosecution case have also remained unchallenged in their cross-examination. The submission of learned Counsel for the appellant was that all these three witnesses are police officials and therefore, highly interested witnesses and their evidence should not be relied upon in the absence of any independent witness. We, however, do not agree to this submission. Just because these witnesses are police officials their evidence cannot be doubted. They had no Page 1031 reason to depose falsely against the appellants nor any motive was attributed to them in their cross-examination for false implication of the appellants. Although it was suggested to PW-16 Inspector Ran Singh that the appellants had been falsely implicated by him at the instance of PW-2 Ashok Gupta and PW-3 Vikas Gupta but in our view that suggestion, which of course was refuted by the witness, does not establish false implication of the accused persons by the police since it was not even suggested to PW-2 Ashok Kumar Gupta that he had got the appellants falsely implicated and even to PW-3 Vikas Gupta no such suggestion was given in cross-examination nor any motive was attributed to them also for getting the two appellants falsely implicated in this case. Even in their statements under Section 313 Cr.P.C. the two appellants did not specify as to how they were claiming that they had been falsely implicated and that every witness had deposed falsely against them. We, therefore, hold that it was at the instance of appellants that dead body of deceased Mahavir Prasad was recovered by PW-16 Inspector Ran Singh, PW-4 HC Mulakh Raj and PW-5 ASI Babu Ram from the factory of PW-2 Ashok Kumar Gupta.
15. Learned Counsel for the appellants have pointed out certain inconsistencies in the statements of police witnesses. They were highlighted even before the trial court and the learned trial court has found none of them to be of any significance. We also find that those inconsistencies have nothing to do with the substratum of the prosecution case and all the witnesses have been consistent on all the material aspects. It was also contended by the learned Counsel for the appellants that the prosecution case should be doubted because of non-examination of any other employee of PW-2 Ashok Kumar Gupta who must have been present in the factory on the night of incident because PW-2 Ashok Kumar Gupta has admitted that the factory used to be open even during the night and workers used to work in the night also. There is no doubt that PW-2 claimed in his cross-examination that during the night also his workers used to work in the factory but since it is not the prosecution case that on the day of the incident any other workers was present in the factory and was an eye witness of the incident it was not necessary to examine any other worker.
16. No other argument has been made by the counsel for the appellants.
17. From the afore-said various circumstances which we have on our own independent analysis of the prosecution evidence found to have been established beyond any doubt we feel that the prosecution has been able to make a strong chain of circumstances from which there can be no other conclusion except the guilt of the two appellants for the offences of robbery as well as murder. Although from the afore-said circumstances the chain which the prosecution is expected to make for securing conviction of an accused on the basis of circumstantial evidence is complete and the two appellants cannot claim acquittal after the circumstances have been established. In any case, the appellants themselves have provided an additional link also to the prosecution and that link in the chain of circumstances is their taking a false plea in their statements under Section 313 Cr.P.C. that no money was recovered from them and appellant Page 1032 Karan Bahadur taking another false plea that he was not employed at all in the factory of PW-2 Ashok Kumar Gupta. In our view, there is no circumstance brought on record by the appellants from which their innocence could be inferred. We also find no infirmity in the appreciation of prosecution evidence by the learned trial Court and the conclusion arrived at by it holding the two appellants guilty of the commission of offences of robbery and murder of Mahavir Prasad in furtherance of their common intention. Consequently, these two appeals of the convicts Bhanu Shaha and Karan Bahadur are liable to the dismissed.
18. In the result, we dismiss Criminal Appeal Nos. 474 of 2003 and 187 of 2004 and uphold the judgment of conviction dated 09-04-2003 and the order on sentence dated 10-04-2003 in Sessions Case No. 47/2001.